PAUL E. MERRELL, PETITIONER V. LEE THOMAS, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY, ET AL.
No. 87-52
In the Supreme Court of the United States
October Term, 1987
On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit
Brief for the Federal Respondent in Opposition
TABLE OF CONTENTS
Opinions below
Jurisdiction
Question presented
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. A) is reported at
807 F.2d 776. The opinion of the district court (Pet. App. C) is
reported at 608 F. Supp. 644.
JURISDICTION
The judgment of the court of appeals was entered on December 31,
1986. The petition for rehearing was denied on April 6, 1987 (Pet.
App. B). The petition for a writ of certiorari was filed on July 3,
1987. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTION PRESENTED
Whether the procedural requirements of the National Environmental
Policy Act, 42 U.S.C. 4321 et seq., are applicable to decisions by the
Environmental Protection Agency granting registration applications
under the Federal Insecticide, Fungicide, and Rodenticide Act, 7
U.S.C. (& Supp. III) 136 et seq.
STATEMENT
1. The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA),
7 U.S.C. (& Supp. III) 136 et seq., regulates the marketing and use of
pesticides. See Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984).
Since the enactment of FIFRA in 1947, Congress has required that any
pesticide product distributed in interstate commerce be registered
with the federal government. Ch. 125, Section 3(a)(1), 61 Stat. 166.
See Monsanto, 467 U.S. at 990-991. /1/ As originally enacted, the
statute regulated only the labeling and marketing of pesticides. In
1972, Congress revised the statute extensively to deal with heightened
concerns about the environmental effects of pesticide use and with
problems that had arisen in the registration system (Federal
Environmental Pesticide Control Act of 1972, Pub. L. No. 92-516, 86
Stat. 973). While recognizing a need for significantly increased
environmental protection and a desire for more public disclosure of
information on the effects of pesticides, Congress also concluded that
pesticides produce substantial benefits and that the needs of
pesticide producers to protect trade secrets and confidential business
information should be accommodated. See S. Rep. 92-838, 92 Cong., 2d
Sess. 1-5 (1972). In the 1972 amendments, Congress set about the task
of accommodating these disparate interests.
When the 1972 amendments became effective FIFRA directly regulated,
for the first time, pesticide use as well as pesticide labeling and
marketing (Monsanto, 467 U.S. at 991-992). In addition, the
amendments supplied a new substantive criterion for registration:
that the pesticide would not cause "unreasonable adverse effects on
the environment" (Section 3(c)(5)(C)-(D), 86 Stat. 980-981), which
Congress defined as "any unreasonable risk to man or the environment,
taking into account the economic, social, and environmental costs and
benefits of the use of any pesticide" (Section 2(bb), 86 Stat. 979).
The legislation also required the Environmental Protection Agency
(EPA) to apply the new standard to all previously registered
pesticides and to review and re-register these products. (Section
4(c)(2), 86 Stat. 999). The new standard was also incorporated into
the administrative procedures for cancellation and suspension of
pesticides (Section 6(b) and (c), 86 Stat. 984-985).
Another feature of the 1972 amendments was the establishment of a
mandatory licensing scheme for the health and safety data applicants
were required to submit in order to obtain a registration. This
system permitted EPA to consider data submitted by one company to
approve applications for similar products from other persons (Section
3(c)(1)(D), 86 Stat. 979-980). See Monsanto, 467 U.S. at 992.
Congress also addressed the question of public disclosure of data
submitted to EPA by requiring the agency to publish a notice in the
Federal Register of each application for registration if the pesticide
contained "any new active ingredient or it would entail a changed use
pattern," to allow 30 days for public comment (Section 3(c)(4), 86
Stat. 979-980). EPA was further directed to make the data required
for registration available to the public within 30 days of
registration (Section 3(c)(2), 86 Stat. 980). This requirement,
however, was specifically qualified by the provisions of Section 10,
86 Stat. 989, which protected the property interests of applicants by
permitting them to designate portions of their submissions to EPA as
trade secrets or confidential business information, and which
prohibited EPA from disclosing that information if the agency
concluded the data "contain(ed) or relat(ed)" to trade secrets or
confidential business information. /2/
These provisions, particularly the definition of trade secrets,
were the subject of much litigation that led to decisions which
effectively prevented the disclosure of health and safety data and
barred consideration by EPA of such data to register other pesticide
products. See Monsanto, 467 U.S. at 993. To correct this and other
problems, Congress again amended the FIFRA in the Federal Pesticide
Act of 1978, Pub. L. No. 95-396, 92 Stat. 819. The 1978 amendments
continued the prohibition on disclosure of trade secrets and
confidential business information, but with a specific qualification
to authorize disclosure of health and safety data after registration 7
U.S.C. (& Supp. III) 136h(d)). /3/ Congress also enacted protections
to guard against disclosure to foreign and multinational pesticide
producers either before or after registration: Section 10(g)
prohibits EPA from knowingly disclosing any submitted information to
such entities or to persons intending to deliver the information to
such entities (7 U.S.C. 136h(g)).
The 1978 amendments also added a provision (Section 3(c)(8))
intended to govern EPA's public administrative review of the risks and
benefits of any pesticide, a review EPA undertakes before deciding
whether to conduct formal proceedings to cancel, suspend, or deny a
registration (7 U.S.C. 136a(c)(8)). EPA may not conduct such a public
review unless it "is based on a validated test or other significant
evidence raising prudent concerns of unreasonable adverse risk to man
or the environment" (ibid.). /4/
2. Petitioner brought this action seeking to cancel the
registration of seven herbicides licensed under FIFRA that a local
road department planned to spread along a road near his wife's farm
(Pet. App. 2a). Petitioner first placed a telephone call to EPA
asking that the planned spreading be halted, and less than one week
later he filed this lawsuit (see E.R. 1; S.E.R. 1-2). /5/ The
complaint sought relief not on the ground that the continued use of
these pesticides failed to meet the criterion of FIFRA that registered
pesticides not cause "unreasonable adverse effects on the
environment," but on the ground that EPA's extensive procedures for
the review of the environmental effects of pesticides did not comply
with the requirements of the National Environmental Policy Act (NEPA),
42 U.S.C. (& Supp. III) 4321 et seq. (E.R. 7-9).
Several chemical companies holding registrations for the particular
pesticides at issue, and their trade association, intervened as
defendants. The district court granted summary judgment for the
defendants and dismissed the complaint, holding that the environmental
review conducted by EPA before issuing registrations under FIFRA
satisfied the objectives of NEPA, and therefore that EPA had no
independent obligation to comply with the NEPA procedures (Pet. App.
25a-29a).
3. The court of appeals unanimously affirmed. Its opinion
canvassed the various amendments to FIFRA in 1972, 1975, 1978, and
1984, which comprehensively revised the statute and which were all
enacted after the passage of NEPA. The court concluded that in these
complex, highly detailed amendments, Congress had designed, and then
redesigned, a pesticide registration scheme that attempted to
reconcile the interests of the public in expanded environmental
protection and increased information about pesticides, with the
interests of the manufacturers of pesticides in protecting trade
secrets and confidential business information (Pet. App. 8a-26a). In
the court's view, the fragile balance Congress achieved only after
repeated consideration of the appropriate way for EPA to evaluate and
protect against the environmental risks of pesticide use, allowed no
room for the largely redundant procedures of NEPA, a statute which
also requires federal agencies to take a "'hard look'" at the
environmental consequences of their actions. See Kleppe v. Sierra
Club, 427 U.S. 390, 410 n.21 (1976). The court further observed that
the broad public disclosure provisions of NEPA stood in stark contrast
to the regime Congress enacted in FIFRA, and concluded that there was
no indication that Congress intended the NEPA procedures to upset
FIFRA's delicate balance (Pet. App. 9a-10a, 15a-16a, 21a-22a).
ARGUMENT
The decision of the court of appeals is correct and does not
conflict with any decision of this Court or of any other court of
appeals. Review by this Court is therefore not warranted.
1. Petitioner's principal contention is that the court of appeals
has resolved the question of the potential conflict between NEPA and
FIFRA inconsistently with this Court's decision in Flint Ridge
Development Co. v. Scenic Rivers Ass'n, 426 U.S. 776 (1976). The
Court held in Flint Ridge that where a federal agency's duty under
another statute gives rise to an "irreconcilable and fundamental
conflict" or to a "clear and unavoidable conflict" with obligations
NEPA might impose, the agency is excused from complying with NEPA (426
U.S. at 788). In order to suggest that the court of appeals applied a
different standard, petitioner places almost exclusive reliance on the
court's use of the word "incompatible" (Pet. App. 11a) in place of
this Court's synonymous formulation. /6/ Petitioner is mistaken.
The judgment in this case stems not from the court of appeals'
application of a less stringent rule than required by Flint Ridge, but
from the court's analysis of the significant limitations prescribed by
Congress on the public disclosure of information during the
registration process and on public participation in that process.
FIFRA requires EPA to conduct a thorough review of the environmental
consequences of registration, but petitioner consistently ignores that
Congress, in its various revisions of the registration process, also
restricts EPA's ability to conduct that environmental review on a
public basis. The court of appeals determined, after a comprehensive
review of the statutory scheme, that application of the NEPA
procedures "would sabotage the delicate machinery that Congress
designed to register new pesticides" (Pet. App. 15a-16a). That
conclusion is unassailable.
Petitioner maintains (Pet. 15) that application of NEPA would
"require EPA to disclose more fully the impacts of such registration,"
yet petitioner concedes (Pet. 8) that "(i)f FIFRA prohibited the type
of public participation that NEPA requires there would be a conflict."
Petitioner errs in asserting (Pet. 8) that there is no such conflict.
FIFRA itself places significant limitations on EPA's ability to
provide for public participation in the registration decision and to
disclose information prior to the grant of a registration. Contrary
to petitioner's argument (Pet. 10 n.10), Section 10(d) of FIFRA does
not require disclosure of information about environmental impacts
prior to registration; that Section applies only to "a registered or
previously registered pesticide * * * " (7 U.S.C. (& Supp. III)
136h(d) (emphasis supplied)). Other provisions of the statute prevent
any significant disclosure or opportunity for public participation in
the initial registration decision (e.g., 7 U.S.C. 136a(c)(8)
(imposition of evidentiary threshold prior to public review of
registration or registration application)); 7 U.S.C. 136h(b) (EPA
must honor legitimate claims of trade secrets and confidential
business information); 7 U.S.C. 136h(g) (bar on the disclosure of any
information submitted by applicants to foreign and multinational
pesticide producers, whether directly or indirectly by general
publication)).
FIFRA's legislative history confirms that Congress did not intend
to permit disclosure of data prior to registration. In 1972, the
Senate bill amending FIFRA would have permitted the release of
toxicological data prior to registration. 118 Cong. Rec. 32258. See
S. Rep. 92-970, 92d Cong., 2d Sess. 3, 20 (1972); S. Rep. 92-838, 92d
Cong., 2d Sess. Pt. 2, at 70 (1972). In conference, however, the
Senate receded, and the "liberal(ized)" disclosure provisions were
eliminated from the bill. H.R. Conf. Rep. 92-1540, 92d Cong., 2d
Sess. 34 (1972). A deletion of a provision in conference "strongly
militates against a judgment that Congress intended a result that it
expressly declined to enact." Gulfport Oil Corp. v. Copp Paving Co.,
419 U.S. 186, 200 (1974).
The statutory limitations on public disclosure and participation,
amplified by the legislative history, demonstrate that a clear
conflict exists between the requirements of FIFRA and those of NEPA.
The court of appeals expressly found such an inconsistency (Pet. App.
9a, 12a, 15a, 24a, 29a), concluding that the amendments to FIFRA in
1972, 1975, and 1978, represent Congress's repeated attempts to
finetune the "careful balance between 'the legitimate right of the
public to know the basis for agency decisions and the right of a
business to see that the manufacturing process and other trade secret
information controlled by the Act are not disclosed for the commercial
advantage of competing business interests'" (id. at 15a, quoting H.R.
Rep. 95-663, 95th Cong., 1st Sess. 18-19 (1977)). Simply put, EPA
cannot, consistent with its obligations under FIFRA, grant the kind of
public participation in the consideration of applications for
registration that petitioner demands. In analogous circumstances,
this Court has held that NEPA cannot be construed to require an agency
to abandon its particular statutory obligations. Flint Ridge, 426
U.S. at 788. See Weinberger v. Catholic Action/Peace Education
Project, 454 U.S. 139, 145-146 (1981); United States v. SCRAP, 412
U.S. 669, 694 (1973) ("NEPA was not intended to repeal by implication
any other statute"). /7/
2. Petitioner's remaining points are simply variations on the same
theme. Contrary to petitioner's argument (Pet. 19-15), the court did
not refuse to adhere to this Court's precedents disfavoring implied
repeals and exhorting courts to harmonize, if possible, apparently
conflicting statutes. See Watt v. Alaska, 451 U.S. 259, 267 (1981);
TVA v. Hill, 437 U.S. 153, 189 (1978); Morton v. Mancari, 417 U.S.
535, 550 (1974). The basic interpretative standard used in these
cases, irreconcilability, is the same one this Court has prescribed as
the test for determining whether an agency's duties under one statute
excuse it from complying with the procedures required under NEPA,
which was the precise issue presented to the court below. See Flint
Ridge, 426 U.S. at 788. In either situation, the question can be
resolved only by a careful analysis of the two statutes and their
requirements. As we have shown, the court below performed that
analysis and concluded that the duties and responsibilities Congress
assigned to EPA under FIFRA excused the agency from any duty to comply
with NEPA when reviewing applications for pesticide registrations.
Having reached that conclusion, the court had no need to do anything
else since Flint Ridge and its progeny were the appropriate cases to
apply. See also Brown v. General Services Administration, 425 U.S.
820, 834-835 (1976), and cases there cited. In any event, the result
would not be different under the authorities upon which petitioner
relies, since in practical terms the inquiry would be the same.
3. Finally, there is no basis for petitioner's concern (Pet. 4-5)
that a major federal program has escaped the environmental review
required by NEPA. On the contrary, as the court of appeals perceived
(Pet. App. 9a, 21a-22a), FIFRA itself requires EPA to examine the
environmental effects of pesticide registration. Thus, review under
FIFRA satisfies the primary objective of NEPA: that agencies consider
the environmental consequences of their decisions. See Weinberger v.
Catholic Action, 454 U.S. at 143.
Indeed, it is on this very basis that many courts have exempted
EPA, whose mission is to protect the environment, from the requirement
to prepare an environmental impact statement when making decisions
under the various statutes EPA administers, including FIFRA.
Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1051 (D.C. Cir. 1978)
(Clean Water Act); Wyoming v. Hathaway, 525 F.2d 66, 71-72 (10th Cir.
1975); cert. denied, 426 U.S. 906 (1976) (FIFRA); Amoco Oil Co. v.
EPA, 501 F.2d 722, 749-750 (D.C. Cir. 1974) (Clean Air Act); EDF,
Inc. v. EPA, 489 F.2d 1247, 1256-1257 (D.C. Cir. 1973) (FIFRA);
Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 379-387 (D.C. Cir.
1973), cert. denied, 417 U.S. 921 (1974) (Clean Air Act); Anaconda
Co. v. Ruckelshaus, 482 F.2d 1301, 1306 (10th Cir. 1973) (Clean Air
Act); Warren County v. State of North Carolina, 528 F. Supp. 276,
286-287 (E.D.N.C. 1981) (Toxic Substances Control Act); EDF, Inc. v.
Blum, 458 F. Supp. 650, 661-662 (D.D.C. 1978) (FIFRA); Maryland v.
Train, 415 F. Supp. 116, 121 (D. Md. 1976) (Ocean Dumping Act). /8/
Similarly, there is no need to require EPA to comply with NEPA in
order to assure that the agency takes the required "hard look" at the
environmental impacts of pesticide registration. See Kleppe v. Sierra
Club, 427 U.S. at 410. /9/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
CHARLES FRIED
Solicitor General
ROGER J. MARZULLA
Acting Assistant Attorney General
PETER R. STEENLAND, JR.
JOHN A. BRYSON
Attorneys
AUGUST 1987
/1/ The Department of Agriculture administered the pesticide
registration program until 1970, when the newly-created Environmental
Protection Agency succeeded to these responsibilities. Reorganization
Plan No. 3 of 1970, 35 Fed. Reg. 15623; Monsanto, 467 U.S. at 991.
/2/ The sole exception to this ban on disclosure permitted EPA,
"when necessary to carry out the provisions of this Act," to reveal
information relating to formulas to other Federal agencies or "at a
public hearing or in findings of fact issued by the Administrator (of
EPA)" (Section 10(b), 86 Stat. 989). The Administrator was required
to notify the applicant who submitted the data 30 days before any
proposed release of information in order to provide the applicant an
opportunity to seek judicial review (Section 10(c), 86 Stat. 989).
/3/ This authorization does not permit disclosure of any
information regarding manufacturing or quality control processes, or
information disclosing the identity of, percentage quantity of, or
testing methodology for deliberately added inert ingredients, except
when necessary to protect against an unreasonable risk to health or
the environment. 7 U.S.C. 136h(d)(1)(A), (B) and (C).
/4/ Congress also expected EPA to provide registrants an
opportunity, through private written communication, to address and
resolve the agency's concern about the risk posed by any pesticide
prior to initiating public review. S. Conf. Rep. 95-1188, 95th Cong.,
2d Sess. 35-36 (1978). The purpose was to "furnish a greater degree
of protection for the property rights of pesticide registrants and
ameliorate the indictment-like characteristics of the (interim review)
process" (id. at 36).
/5/ "E.R." refers to the Excerpt of Record petitioner filed in the
court of appeals; "S.E.R." refers to the Supplemental Excerpt of
Record the government filed in the court of appeals.
/6/ In fact, the court of appeals' use of the term "incompatible"
(Pet. App. 11a) occurs only in its discussion of one element of the
FIFRA's statutory scheme -- the provision of the statute, added in
1972, in which Congress directed EPA to act on registration
applications "as expeditiously as possible." See 7 U.S.C. 136a(c)(3).
The court below reviewed and relied on significantly more of the
history of FIFRA, including the extensive amendments in 1975 and 1978
and their legislative history, which showed a clear congressional
intent to design a registration process that balanced the competing
interests of the public and the pesticide manufacturers (Pet. App.
8a-18a). The court's conclusion that application of NEPA is
incompatible with Congress's direction to expedite the registration
process is plainly correct. EPA processes up to 16,000 applications
every year (S.E.R. 28), and while not all of them would require a
complete environmental impact statement, the NEPA procedures that
petitioner seeks to impose would severely impair EPA's ability to
administer the pesticide registration program. As the court of
appeals recognized (Pet. App. 13a-16a), it was precisely Congress's
purpose, in amending and revising this statute on several occasions,
to break the gridlock that had paralyzed the registration system.
/7/ Petitioner places great reliance (Pet. 5-6, 9-10) on the court
of appeals' observation (Pet. App. 31a n.1) that the application of
the provisions of the Freedom of Information Act (FOIA), 5 U.S.C. (&
Supp. III) 552, which govern public disclosure under NEPA, might
result in limitations on public disclosure that are identical or
similar to those that result directly from FIFRA. See Weinberger v.
Catholic Action, 454 U.S. at 145. On this observation petitioner
premises his repeated assertion that the court found that EPA can
comply with all the procedural requirements of both FIFRA and NEPA.
Petitioner is incorrect. The court of appeals merely stated that it
was unnecessary to determine the limits FOIA might place on
disclosure. Whether the limitations on public disclosure and public
participation in the registration process result from the application
of FOIA or FIFRA, or some combination of the two, the fact remains
that Congress in FIFRA deliberately precluded the kind of public
disclosure and participation that petitioner seeks. That conclusion
is dispositive of petitioner's claim.
/8/ Although the court of appeals did not base its decision on the
functional equivalency doctrine applied in these cases, the court did
not reject that doctrine, contrary to petitioner's assertion (Pet. 6).
As the court noted (Pet. App. 21a), the legislative history indicates
that Congress recognized that requiring an EIS would be redundant in
light of EPA's mission. See S. Rep. 94-452, 94th Cong., 1st Sess. 9
(1975).
/9/ Nor will this decision encourage other agencies to claim
unwarranted exemption from NEPA simply because they have a statutory
obligation other than NEPA to consider the environmental effects of
their decisions. The result here turns on the analysis of a
particular statute and its legislative history and offers no incentive
to other agencies implementing different statutory schemes. See,
e.g., our currently pending brief in opposition in Monongahela Power
Co. v. Marsh, No. 86-1642. (We are furnishing counsel for petitioner
with a copy of that brief).